Political Analyst, former presidential campaign advisor and special advisor to the governor -- "Let there be light."

How California's Prop 8 Anti-Gay Marriage Initiative Was Finally Defeated, Four Years Ago

06/28/2013 08:05 am ETUpdated
Feb 02, 2016

In the end, California's law banning same-sex marriage was actually defeated years ago.

Following the November 2008 passage of Proposition 8 by a 52 percent to 48 percent margin, the opponents had to find a counter. That came in the form of a federal lawsuit against the State of California, in whose constitution Prop 8 was now enshrined, filed by two gay couples who argued that Prop 8 violated the federal guarantees of equal protection and due process.

There was a major plot twist ahead. In a legal sense, the State of California was represented by two political leaders who opposed Prop 8, then Governor Arnold Schwarzenegger and former Governor-turned-Attorney General Jerry Brown.

By June 2009, both announced, separately, that they had decided not to defend Prop 8 in court.

"The Administration," Schwarzenegger declared with a certain studied blandness as he declined to provide counsel to defend Prop 8, "encourages the Court to resolve the merits of this action expeditiously."
For his part, Brown, taking a feistier stance, had already said that while the state would enforce Prop 8, he believed that it violated the 14th Amendment of the U.S. Constitution, and consequently would not defend the initiative.

In the absence of Schwarzenegger and Brown defending Prop 8, its proponents had to take on the task, gaining lower court standing to do so. But this always seemed problematic, as there were quite a few previous cases in which supporters were denied the standing to defend the initiative in court. And so it turned out to be.

The U.S. Supreme Court refused to hear the appeal of a federal district court ruling throwing out Prop 8. Thus, after the courts in California make a few ministerial moves, same-sex marriage will soon be legal again in California.

The Supreme Court decided that the proponents of the initiative had no standing to appeal, thus dismissing the case before them and making clear what an important move Schwarzenegger and Brown made when they decided not to have the state defend the initiative in court.

Brown issued this statement on the historic Supreme Court announcement:

"After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California," Brown declared Wednesday. "In light of the decision, I have directed the California Department of Public Health to advise the state's counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted. The effect of today's U.S. Supreme Court ruling is that the 2010 federal district court's decision that Proposition 8 is unconstitutional is left intact and the law cannot be enforced."

In 2009, Schwarzenegger and Brown created the context for the legalization of same-sex marriage when they decided not to have the state defend the initiative in court.

After he became governor again in 2011, Brown continued the plan, with his successor as attorney general, Kamala Harris, happy to do so as well.

In the future, when same-sex marriage is a commponplace, I'm sure people will wonder what the fuss was all about. The personal squeamishness, cultural inhibitions, and religious strictures that have blocked what is, after all, simply acceptance of a different kind of partnership will seem very quaint. Much has changed in a relative handful of years already.

Prop 8 passed relatively narrowly in 2008, with 52 percent of the vote. It could have been defeated, but that's another story. Eight years earlier, the Prop 22 anti-gay marriage initiative, the elimination of which by the Republican majority California Supreme Court made gay marriage legal in 2008, had passed with 61 percent of the vote.

At the end of this past February, the Field Poll showed that 61 percent of California voters now approve the right to same-sex marriage, with only 32 percent opposed.

That two-to-one ratio is a complete 180 degree flip from the results in 1977, when Field first polled on same-sex marriage.

The 2008 state Supreme Court's decision to legalize same-sex marriage fueled a right-wing drive to enshrine opposition to same-sex marriage in California's constitution.

Gay marriage opponents got a huge gift immediately from San Francisco Mayor Gavin Newsom's comments. Newsom had unilaterally declared same-sex marriage lawful in San Francisco in the midst of the 2004 presidential race, triggering much of the debate we have seen since. Though it was a move that was predictably easily overturned, its boldness remained, stirring the imaginations of advocates.

Newsom played an historic role in spurring what has become a powerful wave for same-sex marriage, and will always be closely linked to what is clearly becoming the most successful civil rights movement in a long time.

But as the anti-gay marriage campaign gathered steam in 2008 after the state Supreme Court legalized same-sex marriage, Newsom delighted the proponents of what became Proposition 8 by delivering a gloating set of remarks.

"By the way, as California goes, so goes the rest of the nation," he said. "It's inevitable. This door's wide open now. It's gonna happen. Whether you like it or not. This is the future. And it's now."

This helped galvanize religious conservatives around the country, and they poured millions into the California campaign. It also provided the cornerstone for the Yes on 8 ad campaign.

A few weeks before the election, with opponents of Prop 8 fighting back against distracting assertions that the right to same-sex marriage meant that "homosexuality" will be promoted in the public schools, Newsom presided over the same-sex wedding of a first grade teacher at San Francisco City Hall. Eighteen of her students were on hand to toss rose petals and blow bubbles on their just married teacher and her new wife.

The Yes on 8 forces had a field day with this, successfully pushing back against a new and more effective flight of No on 8 ads.

When Yes on 8 adman Frank Schubert swept the top awards of the American Association of Political Consultants in 2009, he was asked how the Yes on 8 campaign came from 14 points down to win. He replied that they were disciplined in their messaging (which means they worked hard to keep the overt hatred of many campaign supporters out of view), they had huge support from some big churches, and "We had a gift from God: Gavin Newsom."

They also had help from a No on 8 campaign which had trouble finding its footing.

Ironically, the appropriate frame was ready-made.

The Republican majority state Supreme Court, in an opinion written by a prominent Republican, had determined the right to same-sex marriage to be a fundamental right. The state's attorney general, Jerry Brown -- in a move that caused Yes on 8 backers to scream bloody murder -- determined the language on the ballot, saying that Prop 8 would take away the right to same-sex marriage.

Anything that takes away an existing right is highly suspect to voters.

Late advertising on this obvious theme cut heavily against Yes on 8. New consultants shot down as well the distracting argument that the right to same-sex marriage means lifestyle promotion in the schools. But the San Francisco City Hall wedding provided new fodder for marriage rights opponents to cut back hard.

There were other problems.

For his part, Schwarzenegger, pro-gay rights throughout his career but a two-time vetoer of gay marriage legislation (citing the anti-gay marriage initiative which passed earlier in the decade with 61 percent of the vote), came out against Prop 8. But he didn't campaign up and down the state against it, instead focusing his energies on his second initiative to take legislative redistricting out of the hands of the legislature. His reasoning? He didn't want to turn off Republicans who might vote for his initiative, which did become a rare electoral victory for redistricting reformers.

Then there was Barack Obama, who opposed Prop 8 but also, formally at least, opposed same-sex marriage. Making an all-out and notably successful effort to carry red states, he didn't rock the boat of his own electoral strategy. So, even though Obama carried California by a crushing 61 percent to 37 percent, he did little against Prop 8.

Both Obama and Schwarzenegger authorized their appearances in a last-minute TV ad against Prop 8. Which for a time, with other moves, looked as though it might be enough.

But Obama's stated opposition to same-sex marriage showed up heavily in Yes on 8 appeals targeted to the African American and Latino communities, which voted heavily for him but had problems with same-sex marriage. A late ad by actor Samuel L. Jackson made the case that what the Yes on 8 forces were up to was just an updating of ongoing opposition to civil rights, but it wasn't enough.

I remember a discussion about Prop 8 -- which was part of a larger discussion about the about to conclude presidential race -- with some of the top moderate Republicans in America on the weekend before the 2008 election. This was a wide-ranging and very telling discussion which has not yet been taken off background. They were worried that not enough was happening to defeat Prop 8, and more worried still about the dogged hardcore opposition to same-sex marriage in their own party.

While that opposition still exists, and same-sex marriage still is not legal in most of the states, the arc of the future is clear.

Four years ago in California, the decisions by Schwarzenegger and Brown created the context in which Prop 8 was ultimately defeated and same-sex marriage made legal in the nation's largest state. Sometimes it really is what you DON'T do that makes all the difference.